Title IX: Not About Discrimination

Imagine
a hypothetical gourmet grocery store chain — let’s call it Wholly Wholesome
Foods — that serves haute cuisine specialties at sushi/deli/lunch counters only
in its stores located in upscale neighborhoods. Now imagine the long zealous
arm of federal, state, and local enforcers accusing WhoWhoFoo of discriminating
against inner city residents and forcing it to open its lunch counters in all
of its stores, even those located in areas where extensive and intensive
studies have shown there is no unsatisfied desire to pony up for counter
service for WhoWhoFoo’s fancy foods.

Anyone
who thinks my hypothetical is too far-fetched need look no farther than America’s
college campuses to confirm that it isn’t a hypothetical at all. It’s been
happening in real life (or the college campus version of real life) for years
in ongoing disputes over implementing Title IX’s
requirement that “athletic programs are operated in a manner that is
free from discrimination on the basis of sex.” 

The
central, unresolved conundrum of Title IX, as with so many controversial civil
rights issues, is lack of consensus over the definition and meaning of the “discrimination”
from which these programs must be free. Do colleges discriminate against women
by not offering sports programs in which few women are interested? Does “equal
opportunity” require eliminating programs in which men are interested in order
to have an equal number of programs available to men and women?

A few days ago Inside Higher Ed
published yet another report
of Title IX supporters reacting in outrage to yet another new study
arguing that “it may be a mistake to base Title IX implementation on the
assumption that males and females have, or soon will have, generally equal
sports interest.” Title IX activists reply, in effect, so what? Thus Erin
Buzuvis, a law professor at Western New England University who runs the Title IX Blog,
wonders,

why
are we surprised, in a world where there’s still sex discrimination, that women’s
participation in sport is lower than men’s? Women have inferior opportunities
and they have to do so against the cultural grain…. It doesn’t say anything at
all about what interest levels would be there absent discrimination and absent
these strong cultural forces.

In
any event, claims Nancy Hogshead-Makar, a law professor at Florida Coastal
School of Law, colleges can remain in compliance “by demonstrating that the
interests and abilities have been fully accommodated by the present program and
there is no unmet demand (via student surveys and such).”

Hogshead-Makar’s
claim is at best disingenuous, since Title IX proponents always ferociously
attack any attempt to measure women’s interest in college sports offerings as,
in the words of a senior executive at the NCAA quoted
by the Chronicle of Higher Education in 2007, “contrived to show that females
are not interested in participation.” Similarly, in a 2010 Inside Higher Ed article,
Marcia
Greenberger, founder and co-president of the National Women’s Law
Center, denounced interest surveys as “simply an underhanded way to weaken
Title IX and make it easy for schools that aren’t interested in providing equal
opportunity for women to skirt the law.”

That
Title IX activists aren’t actually opposing discrimination was nicely revealed
by Myles Brand, the late president of the NCAA. No survey, he said in the same
Inside Higher Ed article, could adequately measure women’s interest, “nor does
it encourage young women to participate.” If that’s what Title IX is about,
then the purpose of Title II‘s
requirement of equal, non-discriminatory access to public accommodations must
have been to encourage more blacks to sleep in hotels and buy ham sandwiches at
lunch counters.

Title
IX, in short, has nothing to do with ending discrimination. Like so much of
what passes for civil rights these days, it is all about promoting “equity,”
i.e., proportional representation in college sports, whether or not the
interests of men and women students is proportional.